People v. Sands

• Decision Date: 26 May 2004
• Docket Number: Docket No. 243339,Docket No. 243409.
• Citation: 680 N.W.2d 500,261 Mich. App. 158
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Lamar SANDS, Defendant-Appellant. People of the State of Michigan, Plaintiff-Appellee, v. Deshawn Lamar Jenkins, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

680 N.W.2d 500

261 Mich. App. 158

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Lamar SANDS, Defendant-Appellant.

People of the State of Michigan, Plaintiff-Appellee, v. Deshawn Lamar Jenkins, Defendant-Appellant.

Docket Nos. 243339, 243409.

Court of Appeals of Michigan.

Submitted February 11, 2004, at Detroit.

Decided March 9, 2004, at 9:15 a.m.

Released for Publication May 26, 2004.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Michael E. Duggan, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Mary DuFour Morrow, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Rubina S. Mustafa) for the defendants.

Before: NEFF, P.J., and WILDER and KELLY, JJ.

NEFF, P.J.

In these consolidated appeals, both defendants appeal as of right their bench trial convictions of first-degree home invasion, MCL 750.110a, and their underlying assault convictions. Defendants argue that the home invasion statute is unconstitutionally vague. We find no constitutional infirmity and therefore affirm each defendant's convictions.

I

In Docket No. 243339, defendant Sands appeals his convictions of first-degree home invasion and assault and battery, MCL 750.81. He was sentenced, as a fourth-offense habitual offender, MCL 769.12, to thirty months' to twenty years' imprisonment for the home invasion conviction and ninety days for the assault and battery conviction. In Docket No. 243409, defendant Jenkins appeals his convictions of first-degree home invasion and aggravated assault, MCL 750.81a. He was sentenced as a third-offense habitual offender, MCL 769.11, to fifty-one months' to twenty years' imprisonment for the home invasion conviction and six months to one year for the aggravated assault conviction.

II

Defendants present substantially identical arguments on appeal. They argue that the home invasion statute, MCL 750.110a, under which they were convicted of first-degree home invasion, is unconstitutionally vague. We disagree.

A

Defendants failed to preserve this issue for appellate review by failing to challenge the constitutionality of the statute below. People v. Jensen, 222 Mich. App. 575, 579, 564 N.W.2d 192 (1997), vacated in part on other grounds 456 Mich. 935, 575 N.W.2d 552 (1998). Generally, an issue is unpreserved if it is not properly raised before the trial court. People v. Grant, 445 Mich. 535, 546-547, 520 N.W.2d 123 (1994). Unpreserved constitutional issues are reviewed for plain error that affected a defendant's substantial rights. People v. Carines, 460 Mich. 750, 763-764, 774, 597 N.W.2d 130 (1999).

B

Statutes are presumed to be constitutional unless their unconstitutionality is readily apparent. People v. Wilson, 230 Mich.App. 590, 593-594, 585 N.W.2d 24 (1998). A party challenging the constitutionality of a statute has the burden of proving its unconstitutionality. People v. Abraham, 256 Mich.App. 265, 280, 662 N.W.2d 836 (2003). A party challenging the facial validity of a statute must show that no circumstances exist under which it would be valid. Id. A vagueness challenge must be considered in light of the facts at issue. Wilson, supra at 593, 585 N.W.2d 24.

A penal statute may be unconstitutionally vague if it (1) fails to provide fair notice of the conduct proscribed, (2) permits arbitrary and discriminatory enforcement, or (3) is overbroad and impinges on First Amendment freedoms. People v. Boomer, 250 Mich.App. 534, 539, 655 N.W.2d 255 (2002); People v. Noble, 238 Mich.App. 647, 651, 608 N.W.2d 123 (1999). Defendants challenge the constitutionality of MCL 750.110a, the statute defining home invasion and its degrees, under the first and second grounds.

"When presented with a vagueness challenge, we examine the entire text of the statute and give the words of the statute their ordinary meanings." People v. Morey, 230 Mich.App. 152, 163, 583 N.W.2d 907 (1998), aff'd 461 Mich. 325, 603 N.W.2d 250 (1999). To afford proper notice of the conduct proscribed, a statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited. Noble, supra at 652, 608 N.W.2d 123. A statute cannot use terms that require persons of ordinary intelligence to speculate regarding its meaning and differ about its application. Id. For a statute to be sufficiently definite, its meaning must be fairly ascertainable by reference to judicial interpretations, the common law, dictionaries, treatises, or the commonly accepted meanings of words. Id.

C

Defendants argue that the home invasion statute fails to clearly define what conduct will elevate an offense from third-degree home invasion to first-degree home invasion. The statute provides in relevant part:

(2) A person who breaks and enters a dwelling with intent to commit a felony, larceny, or assault in the dwelling, a person who enters a dwelling without permission with intent to commit a felony, larceny, or assault in the dwelling, or a person who breaks and enters a dwelling or enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a felony, larceny, or assault, is guilty of home invasion in the first degree if at any time while the person is entering, present in, or exiting the dwelling either of the following circumstances exists:

(a) The person is armed with a dangerous weapon.

(b) Another person is lawfully present in the dwelling.

* * *

(4) A person is guilty of home invasion in the third degree if the person does either of the following:

(a) Breaks and enters a dwelling with intent to commit a misdemeanor in the dwelling, enters a dwelling without permission with intent to commit a misdemeanor in the dwelling, or breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor. [MCL 750.110a (emphasis added).]

Defendants contend that when the criminal act underlying home invasion is a misdemeanor assault, as in these cases, the statute is ambiguous regarding whether the offense is punishable as a third-degree offense, MCL 750.110a(4)(a), or a first-degree offense, MCL 750.110a(2). Accordingly, because their conduct only rose to the level of a misdemeanor offense, defendants arguably should only be charged with third-degree home invasion, subsection 110a(4)(a).

Defendants argue that the statute is facially void for vagueness. Further, because defendants could be charged under either provision, the statute leads to arbitrary and discriminatory enforcement as applied. We conclude the statute is neither vague on its face nor as applied.

We find defendants' argument defeated by the plain language of the statute. The plain language of the statute clearly indicates that assault is an underlying crime that elevates a home invasion to first-degree home invasion under MCL 750.110a(2). Subsection 110a(2) does not limit the term "assault" to any particular type of assault. Therefore, under MCL...